Following a 98-to-0 vote in the US Senate approving the nomination of Antonin Scalia to the Supreme Court in 1986, Judge Abner Mikva, a longtime liberal adversary, noted that his former colleague on the Court of Appeals was aware “that you can’t always have it your own way.” When in doubt, Mikva predicted, “he’ll look for a middle ground . . . He has an appropriate amount of humility. It won’t go to his head.”
It has not quite worked out that way. As Bruce Allen Murphy, a professor at Lafayette College and author of three previous biographies of Supreme Court justices, demonstrates in “Scalia: A Court of One,’’ Scalia may well be the most combative and controversial member of the high court in US history.
Thoroughly researched and accessible (though at times repetitive and awkwardly written), the biography provides a lively and informative account of Scalia’s upbringing; his education at Georgetown University, where he excelled in debate; his academic career at the University of Virginia and the University of Chicago; his work in the Nixon administration in the offices of telecommunication policy and legal counsel (in the Department of Justice); and his years on the bench.
SCALIA: A Court of One
Murphy assesses Scalia’s theory of “original meaning” and its application to individual cases, including those involving the right to bear arms; the impact of Catholicism on his jurisprudence, especially abortion and the death penalty; and the fallout from his extrajudicial speeches and activities.
“Scalia’’ delivers a withering assault on its subject. Throughout his career, Murphy claims, Scalia knew the results he wanted to achieve and was willing to manipulate information to get there. As a “textualist,” presumably bound by 18th-century Americans’ cultural and semantic understanding of constitutional provisions, Scalia was, in fact, free to choose sources, histories, and historians to “shape the law according to his partisan ideological views.’’
Equally damaging, according to Murphy, were Scalia’s personal attacks on his colleagues and public appearances, during which he opined on pending cases, that compromised his neutrality (when he refused to recuse himself) — and damaged the reputation of the court, “making it fodder for partisan attack.”
Murphy indicts Scalia as a reactionary — and a bully — by quoting him. Just before Hamdam v. Rumsfeld reached the court, Scalia told an audience at the University of Fribourg in Switzerland that he was not about to give a man who was captured on the battlefield a full jury trial. “I mean it’s crazy.”
In an interview with a Hastings College of Law professor, he maintained that the Constitution does not prohibit discrimination on the basis of sex.
In the question and answer period following a lecture at Princeton University, Scalia suggested to a gay first-year student that his comparison of homosexuals with people who commit murder or engage in bestiality may not have been necessary but was effective. “I’m surprised you aren’t persuaded,” he added, with a mixture of condescension and sarcasm.
And during oral argument at the Supreme Court he branded a claim that a VFW memorial with a cross placed on public lands honored only Christian soldiers as an “outrageous conclusion.”
Murphy acknowledges that Scalia is brilliant and gives him credit for several landmark First Amendment opinions and a “memorable dissent” in a Fourth Amendment case involving a claim that mandatory DNA searches should be accepted as legitimate police booking procedures.
That said, although he does not draw the conclusion that the emperor has no clothes, Murphy comes pretty darn close. And it’s a safe bet to assume that Murphy endorses the view of Linda Greenhouse, the onetime Supreme Court reporter for The New York Times, that “this smart, rhetorically gifted man” has “cast a long shadow,” pushed away potential allies (like Sandra Day O’Connor and Anthony Kennedy), and “accomplished surprisingly little.”